This article about COVID-19 vaccines employer mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
The goal of this post is to give a short overview of the law surrounding employer mandates for COVID-19 vaccines. Two caveats. First, this post is not taking a position on whether a mandate is a good or bad idea for a specific employer: it is just setting out the law. Second, this post is focused on employers choosing to require vaccines, not states.
As preliminary comments, I want to remind readers that we do not actually know whether COVID-19 vaccines will dramatically reduce transmission. We know they are very effective at protecting recipients (and very safe), and we have reasonable grounds to expect they will reduce transmission somewhat, but we do not yet know to what extent.
A workplace or employer mandate is, in part, justified by protecting the workforce – employers are expected, sometimes required, to minimize risks to their workers, and may be liable for work-related harms through workers’ compensation, but mandates are often justified by the protection of others – in this case, co-workers and customers – and if the vaccines do not reduce transmission, there is less justification.
We also do not yet know how long the COVID-19 vaccines’ immunity will last, and whether there are very rare side effects that have not yet been discovered. So this discussion has some uncertainty built-in. That uncertainty, however, would not directly change much of the legal framework described below.